TURNING THEIR BACK ON THE LAW?

Transcription

1 TURNING THEIR BACK ON THE LAW? The Legality of the Coalition s Maritime Interdiction and Return Policy Sophie Roden ] 1

2 INTRODUCTION Within a week of taking office Indonesian flagged, Indonesian crewed and Indonesian home-ported vessels without lawful reason to be headed to Australia [will] be turned around and escorted back to Indonesian waters. 1 Tony Abbott, the Australian Opposition Leader, has proposed, as part of his 2013 federal election campaign, to turn back the boats. This political catchphrase denotes a border protection policy 2 of interdicting and returning vessels carrying asylum seekers ( asylum vessels ) to their place of embarkation. According to Abbott, the policy will be implemented on the high seas and will focus on asylum vessels that have embarked from Indonesia and Sri Lanka. Such a policy, however, is subject to the law of the sea and the norm of non-refoulement, and the Commonwealth Minister for Foreign Affairs, Bob Carr, has stated that it would be in contravention of both domestic and international law. 3 The validity of Carr s claim has not yet been examined, and it is the object of this thesis to examine whether the proposed interdiction policy complies with the law of the sea and the norm of non-refoulement. 4 The United States ( US ) and Italy have both implemented similar policies, and as such, there is extensive literature examining the legal ramifications of such policies; interdiction policies, however, have not received sustained scrutiny in Australia. Accordingly, the importance of this thesis is, first, that it analyses and applies existing literature in a new context, and, second, that it provides a framework through which public discourse about the rights and obligations of asylum seekers and Australian border protection policies, can be discussed and critiqued. This thesis argues that the Coalition s policy can be implemented under current Australian law, but that the policy as it currently stands will place Australia in breach of the norm of non-refoulement. Vessels conducting interdiction operations on the high seas are bound by the customary law norm of non-refoulement, as it applies extraterritorially. Chapter I defines the legal scope and content of the norm of nonrefoulement in light of recent case law. The norm permits states to return refugees to third states when certain requirements are met. The scope of these requirements has been subject to various interpretations by scholars and states. This thesis demonstrates that the norm requires not only protection from refoulement but also a guarantee that refugees will be afforded basic human rights. As Indonesia cannot meet either of these requirements, the Coalition s policy will be in breach of this norm. 1 Tony Abbott, 'The Coalition's Plan for more Secure Borders' (Speech delivered at the Institute of Public Affairs, Melbourne, 27 April 2012). 2 A Liberal-National Coalition policy. 3 Simon Cullen, 'Bob Carr says turning back boats is 'illegal'', ABC News (online), 18 July 2012 < 4 This thesis focuses solely on these two areas. It does not address other international law concerns. 2

3 The 1982 United Nations Convention on the Law of the Sea ( UNCLOS ) 5 provides the governing framework for the law of the sea. Across the varying maritime zones, different rules apply in relation to interdiction. Although Abbott has said that interdictions under his policy will occur on the high seas, 6 it is likely, that operations will also take place in the territorial sea and the contiguous zone, as asylum vessels often traverse into the territorial sea undetected. Chapter II examines the legality of interdiction in these three maritime zones and the obligations that arise when a state claims to be carrying out a search and rescue operation. Chapter III examines the impact of the law of the sea and the norm of nonrefoulement on the Coalition s interdiction policy. It doing so, it demonstrates that if the forthcoming federal election results in a Coalition majority in the House of Representatives, Abbott will be able to immediately implement his policy under the current Australian legal framework. This is notwithstanding that the practice of interdiction, as proposed by the Coalition, will breach the norm of non-refoulement. 5 Opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 16 November 1994). 6 Bianca Hall, 'Navy would have role in turning asylum boats around: Morrison', Sydney Morning Herald (online), 4 February 2013 < 3

4 I THE NORM OF NON-REFOULEMENT Article 33 of the Convention Relating to the Status of Refugees 7 ( Refugee Convention ) expressly prohibits states from expel[ling] or return[ing] a refugee in any manner whatsoever to territories where his [or her] life or freedom would be threatened on account of a reason. This prohibition is known as the norm of nonrefoulement. A Legal Status of the Norm At the Refugee Convention s drafting, Article 33 was considered to be of such importance that no reservations were permitted in relation to the Article. Derogations from the Article are only permitted to protect the security or the community of the country in which the refugee is in, but not in cases of war or other emergency situations. 8 Article 33 has since developed into a norm of international human rights law. The norm has evolved from a number of different treaties. 9 The norm of nonrefoulement is understood to have two limbs: the first stemming from the prohibition against torture, and the second from the Refugee Convention. This thesis will only examine the second limb. A legal norm reaches customary international law status 10 when it can be established that there is evidence of a general practice accepted as law. 11 This requires uniform and consistent practice among states over an enduring period of time and opinio juris, meaning a belief by states that the practice is legally required. 12 The norm of nonrefoulement has been accepted as a norm of customary international law by states, scholars and courts. 13 Despite this, a handful of scholars, including James Hathaway, continue to dispute its legal status. 7 Opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 21 January 1967, 1465 UNTS 297 (entered into force 4 October 1967). 8 Refugee Convention arts 8, 33(2). 9 Including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 606 UNTS 267 (entered into force 26 June 1987) art 3 ( CAT ); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 172 (entered into force 23 March 1976) art 6, 7 ( ICCPR ); Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), as amended by Protocol No 11 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 11 May 1994, ETS No 155 (entered into force 1 November 1998) art 3 ( ECHR ). 10 Customary international law binds all states except where the state is a persistent objector. 11 Statute of the International Court of Justice art 38(1)(b). 12 Continental Shelf (Libya v Malta) (Judgement) [1985] ICJ Rep 13, [27], [29]-[30]. 13 Hirsi Jamaa and Others v Italy (European Court of Human Rights, Grand Chamber, Application No 27765/09, 23 February 2012), 67 ( Hirsi Jamaa ). See Seline Trevisanut, 'The Principles of Non- Refoulement at Sea and the Effectiveness of Asylum Protection' (2008) 12 Max Planck Yearbook of United Nations Law 205,

5 Hathaway argues that neither the state practice element nor the opinio juris element has been satisfied. 14 Over the past decade, multiple states, including the US, Italy and Australia, have returned refugees to countries where there is a likely chance they face threats to their freedom and life. These states have consistently re-characterised their conduct and claimed that the norm does not apply extraterritorially or that the individuals were not refugees. 15 The International Court of Justice ( ICJ ) found that if a: state acts in conflict with a recognised rule or norm but defends its conduct based on exceptions to such a rule, this confirms rather than weakens the strength of the rule itself. 16 It follows that contrary state practice can arguably be viewed as reinforcing the legal strength of the norm, as states are not disputing the applicability of the norm but merely trying to claim an exception. Moreover, the ICJ clarified that the state practice only requires general practice 17 rather than the near-universal practice Hathaway postulates. 18 Conformity with the norm in the form of physical state practice is found in a majority of states, including those specially affected by refugees. 19 Messineo confirms that this practice may not be universal, but it is indeed widespread and consistent. 20 Furthermore, the customary international law status of the norm has been widely acknowledged by many states and multi-state bodies. 21 Additionally, all state parties to the Refugee Convention affirmed the norm s status in customary international law in Hathaway acknowledges this evidence, but concludes that it bears little legal weight, as they are mere pronouncements rather than evidence of actual state practice. 23 However these pronouncements reflect the views of 144 states and have 14 James Hathaway, The Rights of Refugees under International Law (Cambridge University Press, 2005) Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law (Oxford University Press, 3 rd ed, 2007), Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States) (Judgement) [1986] ICJ Rep 14, [186]. 17 Ibid. 18 Hathaway, above n 14, Elihu Lauterpacht and Daniel Bethlehem, 'The scope and content of the principle of nonrefoulement: Opinion' in Erika Feller, Volker Türk, and Frances Nicholson (ed), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge University Press, 2003) 87, Francesco Messineo, 'Non-refoulement Obligations in Public International Law: Towards a New Protection Status' in Satvinder Juss (ed), Research Companion to Migration Theory and Policy (Ashgate, 2013) 129, UNHCR Executive Committee on International Protection of Refugees, General Conclusions No 25 (XXXIII) (1982) [b].see Lauterpacht and Bethlehem, above n 19, Declaration of State Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees, Ministerial Meeting of State Parties to the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/MMSP/2001/09 (16 January 2002, adopted December 2001). 23 Hathaway, above n 14,

6 been endorsed by a number of domestic courts 24 and the European Court of Human Rights (ECtHR). 25 Additionally a majority of states around the world continue to accept refugees and have not engaged in refoulement. The evidence indicating the norm s customary international law status confronts and outweighs Hathaway s critique. Debate has also arisen regarding the jus cogens status of the norm. Jus cogens status is afforded to customary law norms from which no deviations are allowed. Allain stresses the importance of recognising the norm of non-refoulement as one with jus cogens status as it gives greater powers to individuals to hold their states to account. 26 The United Nations High Commissioner for Refugees Executive Committee ( ExCom ) has endorsed the norm s jus cogens status, 27 along with Albuquerque J of the ECtHR in Hirsi Jamaa. 28 However, issues regarding state practice arise here as jus cogens requires universal state practice. It is likely that the mixed practice, whilst not sufficient to prevent recognition of the norm s customary international law status, is an obstacle to the norm attaining jus cogens status. 29 Accordingly, this thesis proceeds on the assumption that the norm has reached customary international law status only. Nevertheless, the operation of this norm of customary international law is constrained by the lack of clarity about the scope of the norm of non-refoulement. The scope of the norm has expanded from its initial form in the Refugee Convention. 30 The rest of the Chapter will examine both the clearly defined aspects of the norm that are within the category of customary international law and the areas which have a less clear status under customary international law. B Application of the Norm The norm of non-refoulement affords protection to all individuals who satisfy the definition of a refugee in the Refugee Convention. 31 This protection is afforded whenever a person falls within the jurisdiction of any state that is not a persistent 24 Suresh v Canada (Minister of Citizenship and Immigration) [2002] 1 SCR 3, [65]; Zaoui v. Attorney General (No. 2) [2005] 1 NZLR 690, [28]-[29]; C and others v Director of Immigration (2008) 2 HKC 16, [113], [138]. 25 Hirsi Jamaa (2012) ECtHR Application No 27765/09, 67, [135]. 26 Jean Allain, 'The Jus Cogens Nature of Non-Refoulement' (2001) 13 International Journal of Refugee Law 532, ExCom Conclusion 25 (1982), [b]. 28 Hirsi Jamaa (2012) ECtHR Application No 27765/09, Messineo, above n 20, Robert Newmark, 'Non-Refoulement Run Afoul: The Questionable Legality of Extraterritorial Repatriation Programs' (1993) 71 Washington University Law Review 833, UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1961 Protocol relating to the Status of Refugees, UN Doc HCR/1P/4/Eng/REV.3, 1979 (reissued December 2011) 51. 6

7 objector to the norm. As recognition of refugee status is merely declaratory, the norm applies not only to individuals who have been afforded the status but also those claiming the status. It is also afforded to those who have not yet claimed refugee status or protection but who are presumed by the state to be in need of it. 32 States are only permitted to disregard the norm of non-refoulement when there are reasonable grounds for finding the refugee to be a danger to national security or public safety. 33 There is a high threshold for establishing these grounds. 34 These exceptions will not be examined as their relevance is beyond the scope of this thesis. Article 1A(2) of the Refugee Convention defines a refugee as someone who: Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country. The UNHCR Handbook states that under the Refugee Convention a threat to life or freedom on account of a convention reason will always constitute persecution. 35 In addition, breaches of civil and political rights for a convention reason also amount to persecution. 36 Albquerque J affirmed this in Hirsi Jamaa, stating that the norm protects against a risk of breach of any right contained in the ECHR, including freedom of religion and freedom of thought. 37 The UNHCR has also confirmed that the required threat may be found in any place, not simply the individual s country of origin. 38 Therefore, states are prohibited from refouling a refugee, whether declared or not, to any country in which the individual has a well-founded fear of persecution. C Obligations Imposed on States The overarching obligation on states is to not return an individual to a place where they fear for their safety and life. Importantly, this does not equate to a right of access to a foreign state s territory. 39 However, it does impose an obligation on that state to provide access to a fair and effective refugee status determination ( RSD ) procedure and to ensure the safety of refugees under its control. 40 A state cannot shift this latter obligation to a third state; however, it can transfer a refugee to a third state when 32 Hirsi Jamaa (2012) ECtHR Application No 27765/09 65, [133]. 33 Refugee Convention art 33(2). 34 Lauterpacht and Bethlehem, above n 19, UN Doc HCR/1P/4/Eng/REV.3 [51]. 36 Michelle Foster, 'Responsibility Sharing or Shifting? 'Safe' Third Countries and International Law' (2008) 25(2) Refuge 64, Hirsi Jamaa (2012) ECtHR Application No 27765/09, 63, Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, UNHCR, 26 January 2007, [7]. 39 Trevisanut, above n 13, Penelope Mathew, 'International Association of Refugee Law Judges Conference, Address: Legal Issues Concerning Interception' (2003) 17 Georgetown Immigration Law Journal 221,

8 specific criteria are met. 41 This transfer process is often referred to as the effective protection regime as the initial state must ensure the third state provides the refugee effective protection. The effective protection regime imposes two obligations. The first obligation requires states to evaluate the consequences of refouling an individual to the third state before in fact doing so. The second obligation requires the initial state to establish that the third state meets certain requirements in regards to refugee protection. 42 Once a transfer is effected under the regime, the initial state remains liable for the refugee s protection from refoulement. 43 The third states are usually either safe countries through which the refugee has transited, or are states, which willingly take responsibility for the processing of the refugee claim. 1 Obligation 1: Evaluation Refugee law is centred on the right of all individuals to have their status fairly examined in order for them to be accorded their rights under the international human rights framework. Before an individual can be removed to a third state there is an obligation on the initial state to evaluate the consequences of the individuals expulsion. 44 A breach of the norm of non-refoulement is established if a state fails to do this or if an assessment is done but the assessment procedure is inadequate. 45 What amounts to an adequate evaluation procedure is not clearly defined. A number of states, including European Union (EU) member states, use generic countrywide assessments to create safe third country lists that are then drawn upon when unwanted refugees arrive. This process is predominately implemented through bilateral agreements between the initial state and the third state. However, these generic country based assessments only satisfy the duty to evaluate when they are accompanied by individual evaluations. 46 The individual evaluations must be in relation to the circumstances of the individual claiming refugee status and the country in which they will be refouled to. 47 This is because specific states may be safe for certain individuals, but not for others due to their personal background. In T.I v The United Kingdom the ECtHR stated that the process of transferring a refugee must be subject to rigorous scrutiny, suggesting that a countrywide assessment 41 Note on International Protection, Executive Committee of the High Commissioner's Programme, 54th sess, UN Doc A/AC.96/975 (2 July 2003) [12]; UNHCR Executive Committee on International Protection of Refugees, Conclusion on Problem of refugees and asylum-seekers who move in an irregular manner from a country in which they had already found protection No 58 (XL) (1989) [f]. 42 Note on International Protection, UN Doc A/AC.96/975, R (Adan) v Secretary of State for the Home Department [2001] 2 AC 477, [527]. 44 Andreas Fischer-Lescano, Tillmann Lohr, and Timo Tohidipur, 'Border Controls at Sea: Requirements under International Human Rights and Refugee Law' (2009) 96 International Journal of Refugee Law 256, Stephen Legomsky, 'Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection' (2003) 15 International Journal of Refugee Law 567, UNHCR, Global Consultations on International Protection/ Third Track: Asylum Processes (Fair and Efficient Asylum Procedures), UN Doc EC/GC/01/12 (31 May 2001) [12]-[18]. 47 Report of the Human Rights Committee, vol 1 ( ), UN GAOR, 58th sess, Supp No 40, UN Doc A/58/40 (24th October 2003) [79(13)]. 8

9 alone is insufficient. 48 The UNHCR has found when individual evaluations do not occur it has resulted in refoulement in a number of cases. 49 Refoulement is also more likely to occur when safe third country lists are developed in line with a state s foreign policy strategy, as individual concerns will be superseded by greater political interests. 50 The nature of the individual assessment is unlikely to be a lengthy process as the effective protection regime is utilised to reduce the burden on specific states, not increase it. The implication is that a minimum obligation is imposed on states requiring them to evaluate the impact of refoulement on the refugee claimant in each individual case. Difficulties arise in regards to individual examinations when refugees are interdicted whilst travelling on the sea. Assuming a state s refugee protection obligations are engaged, can the interdicting state conduct accurate individual examinations whilst at sea? O Brien argues that states can only conduct effective and fair status examinations on land and as such, the obligation to individually evaluate correspondingly accords the refugee claimant a temporary right to disembark. 51 However, this has not yet been legally recognised. 52 Despite this, legitimate concerns can be raised regarding the accuracy of individual evaluations conducted at sea. Maritime interdictions are generally carried out by navy personnel whilst on navy warships. A large number of refugees associate the military with their past persecution and are, thus, unlikely to speak freely with military personnel, particularly about their fear of persecution. Further practical concerns that arise include the requirement of interpreters on board to ensure all refugees can present their claims and the ability of personnel to scrutinise claims whilst on a ship. Indeed, the overwhelming conclusion to draw is that the conditions on naval vessels will not allow for adequate individual evaluations. 2 Obligation 2: Third State Requirements To comply with the effective protection regime, states must demonstrate that the third state: guarantees the refugee protection from refoulement, contains an effective RSD procedure, and will treat the refugee according to basic human standards (European Court of Human Rights, Grand Chamber, Application No 43844/98, 7 March 2000) Note on International Protection, UN Doc A/AC.96/975, Rosemary Byrne and Andrew Shacknove, 'The Safe Country Notion in European Asylum Law' (1996) 9 Harvard Human Rights Journal 185, Killian O Brien, 'Refugees on the High Seas: International Refugee Law Solutions to a Law of the Sea Problem' (2011) 3 Goettingen Journal of International Law 715, Hathaway, above n 14, Catherine Phuong, 'The Concept of 'Effective Protection' in the Context of Irregular Movements and Protection in Regions of Origin' (Research Paper No. 26, Global Migration Perspectives, Global Commission on International Migration, April 2005) 4; Department of International Protection, 'Summary Conclusions on the Concept of "Effective Protection" in the Context of Secondary Movements of Refugees and Asylum-Seekers' (Lisbon Expert Roundtable, UNHCR, February 2003) [15]. 9

10 A fundamental aspect of the effective protection regime is protection from chain refoulement. 54 Chain refoulement occurs when a state transfers a refugee to a third state, and the third state then expels the refugee to a further territory where the refugee faces threats to his life or freedom. Any state transferring refugees must guarantee that the third state will not engage in refoulement. 55 This guarantee must be legally binding on the third state and should also accord a legal right to enter and reside. 56 Additionally, the third state must have in place a fair and effective RSD process. 57 Expelling an individual to a third state where an inadequate [RSD] procedure prevents an actual Convention refugee from establishing his or her status will amount to refoulement. 58 Ratification of the Refugee Convention is not required, 59 nor will ratification alone be sufficient to demonstrate an effective RSD procedure has been established. 60 Evidence of the state s actual practice is required. 61 The third state must interpret the definition of a refugee in line with its true meaning, 62 provide access to judicial review and follow the procedures outlined by the ExCom. 63 Factors that can be used to show an effective procedure include processing refugee claims within a reasonable timeframe and ensuring confidentiality over claims. 64 The initial state must also ensure that the third state will treat the refugee according to basic human standards. 65 The exact content of these basic human standards is unclear. Arguably, however, at a minimum they include the right to nondiscrimination, protection from arbitrary detention, the right to education and the right to a means of subsistence. 66 The right to non-discrimination and protection 54 Phuong, above n 53, UNHCR Executive Committee on International Protection of Refugees, Conclusion on International Protection No 85 (XLIX) (1998) [aa]; UNHCR Executive Committee on International Protection of Refugees, General Conclusion No 87 (L) (1999) [j]. 56 T.I v The United Kingdom (2000) ECtHR Application No 43844/98, 15; Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship (2011) 280 ALR 18, [116] ( Plaintiff M70 ). 57 Excom Conclusion 85 (1998) [aa]. 58 Legomsky, above n 45, See Legomsky, above n 45, Contra, Department of International Protection, 'Maritime interception operations and the processing of international protection claims: legal standards and policy considerations with respect to extraterritorial processing' (Protection Policy Paper, UNHCR, November 2010) [38]. 60 Minister for Immigration and Multicultural Affairs v Al-Sallal (1999) 94 FCR 549, 559; Mathew, above n 40, Al-Zafiry v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 663, [20]; M.S.S v Belgium and Greece (2011) 53 EHRR 28, [353] ( M.S.S ). 62 Michigan Guidelines on Protection Elsewhere' (2007) 28 Michigan Journal of International Law 207, [4]. 63 Outlined in UNHCR Executive Committee on International Protection of Refugees, Conclusion on Determination of refugee status No 8 (XXVIII) (1977) [e]. 64 Hirsi Jamaa (2012) ECtHR Application No 27765/09, 75; Canadian Council for Refugees and others v R [2007] FC 1262, [239]-[240]. 65 Legomsky, above n 45, 585; ExCom Conclusion 85 (1998) [aa]. 66 Phuong, above n 53, 5. 10

11 from arbitrary detention amount to basic human standards due to their fundamental nature within the Refugee Convention 67 and ICCPR, 68 both treaties from which the norm has been derived. The right to education is a central human standard given the special vulnerabilities of children and its basis in a number of international treaties, including the Convention on the Rights of a Child 69 and the Refugee Convention. 70 The right to a means of subsistence is more controversial. However, Lord Bingham in the House of Lords, stated that treatment is inhuman and degrading when an individual is unable to support himself, [and] by the deliberate action of the state, [is] denied shelter, food, or the most basic necessities of life. 71 This finding was affirmed by the ECtHR in M.S.S v Belgium. 72 As the norm of non-refoulement protects against inhuman and degrading treatment, effective protection must also include provision of social assistance or access to the labour market in the interim. 73 Additional obligations, beyond those required under the norm, apply to states who have ratified the Refugee Convention and are transferring the refugee from within their territory. 74 D Extraterritorial Application Non-refoulement obligations arise when a refugee, whether formally recognised or not, falls within the jurisdiction of a state. 75 However, whether these obligations apply when states exercise their jurisdiction extraterritorially has been more controversial. The US Supreme Court decision in Sale v Haitian Centres Council 76 ( Sale ) sparked extensive debate on this legal issue. The Supreme Court considered whether an order to interdict and return Haitian asylum vessels outside of US territory was consistent with the US domestic law and international obligations. The judgement outlines the argument against extraterritorial application and is the key source of law for critics of the norm s extraterritorial application. There is now an almost universal consensus that the norm is applicable when states extraterritorially enforce their effective jurisdiction. 77 The majority judgement relied on three key aspects of Article 33(1) of the Refugee Convention to justify its finding that the Article does not apply extraterritorially. Firstly, they found that the term return should be narrowly interpreted, due to the 67 Refugee Convention arts 3, ICCPR arts 2(2), Opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) art Refugee Convention art R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [7]. 72 M.S.S (2011) 53 EHRR 28, [252]-[264]. 73 Goodwin-Gill and McAdam, above n 15, 396; 'Michigan Guidelines on the Right to Work' (2010) 31 Michigan Journal of International Law 293, [295]. 74 See Legomsky, above n 45, Goodwin-Gill and McAdam, above n 15, U.S 155 (1993). 77 Goodwin-Gill and McAdam, above n 15, 244; Lauterpacht and Bethlehem, above n 19, 111; Thomas Gammeltoft-Hansen, Access to Asylum: International Refugee Law and the Globalisation of Migration Control (Cambridge University Press, 2011)

12 inclusion of the French verb refoule within the English text of Article This narrow interpretation of return was held to include only exclusions within the territorial zone. 79 Secondly, the Court argued that Article 33(2) implied a territorial limitation on Article 33(1). 80 Thirdly, the majority relied on the Swiss and Dutch delegate statements from the travaux preparatoires, which suggested that the delegates did not intend the treaty to apply extraterritorially. 81 The reasoning of the majority in Sale was heavily criticised not only by Blackmun J in his scathing dissenting judgement but also by scholars, 82 the ECtHR, 83 and other international organisations. 84 Article 31(1) of the Vienna Convention on the Law of Treaties 85 ( VCLT ) specifies that treaties should be interpreted in accordance with the ordinary meaning of the text and the overriding purpose of the treaty. The Supreme Court decision does not follow these interpretive requirements, and instead applied a special meaning to the term return that is incompatible with the Refugee Convention s underlying humanitarian purpose. The Court s interpretation does not extend to an analysis of the phrase in any manner whatsoever, which arguably implies a broad application of the norm. 86 Furthermore, the majority s reliance on the travaux preparatoires is inconsistent with Article 32 of the VCLT, which specifies that supplementary materials should only be relied upon when the meaning of the article is ambiguous or obscure; or the interpretation leads to a result which is manifestly absurd or unreasonable. The reasoning behind the ICJ s Advisory Opinion in the Legal consequences of the Construction of a Wall in the Occupied Palestinian Territory that the ICCPR applies extraterritorially, lends further support to the argument that the norm of non-refoulement applies extraterritorially. 87 International law stipulates that where a state exercises effective control over an area [or individual] situated outside its national territory, it will be recognised as an extraterritorial exercise of the state s jurisdiction. 88 The level of control required is dependent on the facts of the individual case, however once established, a state is bound to act in line with its international obligations which have extraterritorial 78 Sale 509 U.S 155 (1993) Ibid Ibid Ibid Lauterpacht and Bethlehem, above n 19, 111; Michelle Foster, 'Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State' (2007) 28 Michigan Journal of International Law 223, 251; Gammeltoft-Hansen, above n 77, Hirsi Jamaa (2012) ECtHR Application No 27765/09, Haitian Centre for Human Rights v. United States, Case No , Inter-Am. Comm n H.R., Report No. 51/96, OEA/Ser.L/V/II.95 Doc. 7 rev [550]; Access to assistance and protection for asylum-seekers at European seaports and coastal areas, Recommendation 1645(2004), Council of Europe: Parliamentary Assembly, 6th stg (29 January 2004) [j]. 85 Opened for signature 23 May 1951, 1155 UNTS 331 (entered into force 27 January 1980). 86 Foster, Protection Elsewhere, above n 82, [2004] ICJ Rep 136, [106]-[114]. 88 Isaak and Others v Turkey (Admissibility) (European Court of Human Rights, Grand Chamber, Application No 44587/98, 28 September 2006) [19]. 12

13 effect. 89 States conducting interdiction and return operations in relation to asylum vessels generally exercise effective control, thus, are bound by the norm of nonrefoulement in all maritime zones. In addition to this, they must comply with the legal obligations set out in the law of the sea. 89 Hirsi Jamaa (2012) ECtHR Application No 27765/09 [81]-[82]. 13

14 II THE LAW OF THE SEA All vessels, including state vessels, are bound by the law of the sea. The law of sea stipulates that states can only interdict and assert control over foreign vessels in specific circumstances. These specific circumstances vary across the different maritime zones. When these specific circumstances are not met states often characterise their conduct as a search and rescue ( SAR ) operation. This Chapter outlines the different maritime zones under the law of the sea and the legal means of interdicting and returning foreign vessels within these zones. The second part of this Chapter examines the obligations flowing from maritime SAR operations. A Maritime Zones In each maritime zone the law of the sea imposes different obligations and rights on states. Three key zones will be examined in this thesis: the territorial sea, the contiguous zone and the high seas. The exclusive economic zone (EEZ) and continental shelf will not be addressed as they are beyond the scope of this thesis. 1 The High Seas The high seas are all those areas beyond any of the other zones in which states exercise a certain measure of sovereign power. 90 The high seas are free of state sovereignty and are governed by the principle of freedom of the seas, within which freedom of navigation operates. 91 The zone, however, does not operate in a jurisdictional vacuum. 92 Vessels on the high seas are subject to their flag state jurisdiction and other rules of international law. 93 Additionally, the freedom of navigation does not amount to an absolute freedom; vessels may be subject to the limited right of visit available to states. 94 Article 110 of UNCLOS permits states to board a foreign vessel if they suspect the vessel is engaged in piracy; engaged in the slave trade; engaged in unauthorised broadcasting; the ship is without nationality 2 The Contiguous Zone The contiguous zone extends beyond the territorial sea to a limit of 24 nm. 95 The zone is conterminous with the EEZ and the continental shelf. As a result, the enshrined freedom of navigation of the high seas also applies within the contiguous zone. 96 Under an exception to the freedom of navigation principle, in this zone, coastal states 90 Mathew, above n 40, 223. See UNCLOS arts 86, UNCLOS art Donald Rothwell and Tim Stephens, The International Law of the Sea (Hart Publishing, 2010) UNCLOS art Ibid art Ibid art 33(2). 96 Ibid art

15 are entitled to exercise rights over the outward and inward bound movement of ships The Territorial Sea The territorial sea extends up to 12 nm from the territorial sea baseline 98 of the coastal state 99 and within this zone coastal states can exercise complete sovereignty, subject to international law requirements. A key limitation on the coastal state s sovereignty, however, is the right of innocent passage. When a foreign vessel exercises its right of innocent passage, a coastal state cannot interfere, unless the foreign vessel breaches the laws [or] regulations of [the] coastal state. 100 Reaching the territorial sea is of crucial importance for individuals seeking asylum. The right to claim asylum arises only upon entering the state, including entering the territorial sea Definition B Interdiction and Return Policies The term interdiction has been defined differently under varying branches of international law. 102 Guilfoyle has interpreted interdiction to be a two-step process. The first step involving the stopping and boarding of a vessel at sea and the second step involving the arresting of the vessel, passengers and cargo on board the vessel, if necessary. 103 This paper takes a differing approach, adopting a law of the sea definition of interdiction. It understands interdiction to involve states exercising a right of enquiry over foreign vessels. The term returning involves a separate action. Returning includes the assertion of authority over the vessel and the subsequent removal of the vessel to a different maritime zone. In practice, interdiction and returns occur when a vessel approaches a foreign vessel and after enquiring of the nationality of the vessel, proceeds to board it in order to tow or escort it to another location Legal Framework 97 Rothwell and Stephens, above n 92, The territorial sea baseline refers to the low-water line along the coast of the state. 99 UNCLOS arts Barbara Miltner, 'Irregular maritime migration: Refugee Protection Issues in Rescue and Interception' (2006) 30 Fordham International Law Journal 75, The right to claim asylum is enshrined in Article 14 of the Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/810 (10 December 1948). Article 14(1) states [e]veryone has the right to seek and to enjoy in other countries asylum from persecution. 102 Coppens, maritime interdiction, Douglas Guilfoyle, Shipping Interdiction and the Law of the Sea (Cambridge University Press, 2009) This definition does not encompass activities that are classified as SAR operations. 15

16 Discussion surrounding interdiction and return incorrectly implies that the act of carrying migrants across the sea is a criminalised activity. 105 In fact it is the right of all individuals to freely move through the high seas. It is only upon entering the territorial waters of a state that unlawful migration may occur. 106 The analysis of the legal framework will be examined through the differing maritime zones to clearly establish the legal options available to states wishing to impose such interdiction policies. (a) The High Seas The freedom of navigation enshrined within the high seas 107 is not absolute as vessels can be subject to interference under permissive rules of international law. However, a vessel registered with its flag state is afforded protection by the flag state s enforcement of its jurisdiction over all activities on the vessel. 108 States cannot interdict a foreign vessel which has flag state protection and is acting in compliance with international law requirements, except if consent is given by the captain or flag state. 109 Asylum vessels often fall into the exceptions to these rules as they travel without state protection. The concept of freedom of the high seas is usually expressed as a freedom common to states. 110 Ships without nationality are ships without a state of registration ( stateless vessels ). Stateless vessels have no protection on the high seas as they are not directly bestowed any rights and have no jurisdiction to rely on to assert their sovereignty. The law of the sea is silent on the rights of stateless vessels, but has accepted that statelessness itself is not repugnant to the law of the sea. 111 Statelessness results in those vessels being subject to a high degree of scrutiny. The right of visit is a key limitation on the freedom of navigation found within the high seas. The right empowers warships or duly authorised and marked government vessels to confirm a foreign vessel s nationality when there are reasonable grounds for suspecting the vessel is involved in piracy; the slave trade; unauthorised broadcasting; or is without nationality. 112 This includes the right to check documents, and if suspicion remains, a right to further examination on board the ship Efthymios Papastavridis, 'Interception of Human Beings on the High Seas: A Contemporary Analysis under International Law' (2009) 36 Syracuse Journal of International Law and Commerce 145, Trevisanut, above n 13, UNCLOS art UNCLOS arts 91, Jasmine Coppens and Eduard Somers, 'Towards New Rules on Disembarkation of Persons Rescued at Sea?' (2010) 25 The International Journal of Marine and Coastal Law 377, Goodwin-Gill and McAdam, above n 15, Robert Reuland, 'Interference with Non-National Ships on the High Seas: Peacetime Exceptions to the Exclusivity Rule of Flag-State Jurisdiction' (1989) 22 Vanderbilt Journal of Transnational Law 1161, UNCLOS arts 110(1),(2),(5). 113 Ibid art 110(2) 16

17 The vessels used by asylum seekers are predominately small fishing boats. Due to their small size and expected use only within coastal waters these fishing boats are not registered with the state from which they originate. 114 A vessel that is not registered is assumed to be assimilated to a ship without nationality. 115 This means asylum vessels generally cannot claim protection from their state of origin. As such, they are subject to the vulnerabilities inherent in travelling as a stateless vessel. The law of the sea does not expressly stipulate whether an interdicting vessel can assert its jurisdiction over a stateless vessel. 116 Two strands of opinion have developed on this issue. The first view, endorsed by the US 117 and the United Kingdom, 118 maintains that states may completely impose their jurisdiction on stateless vessels 119 as they constitute a potential threat to the order and stability of navigation on the high seas. 120 This permits states to board and control any stateless vessel found on the high seas. The extent of the power available to the interdicting state, under this view, extends beyond addressing the threat imposed by stateless vessels. On a stronger legal footing, is the contrary assertion that states can assert their jurisdiction over stateless vessels only to ensure they are abiding by international regulations and norms. 121 This requires a jurisdictional nexus to be established before the interdicting state can assert its jurisdiction. 122 Once a nexus is established the interdicting state can only assert control to the extent allowed by the nexus. The Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the Convention against Transnational Organised Crime 123 ( Smuggling Protocol ) aims to prevent and combat the smuggling of migrants. Article 8(7) of the Protocol give states powers to board and search stateless vessels if there is a reasonable suspicion that the vessel is engaged in the smuggling of 114 Ibid art Goodwin-Gill and McAdam, above n 15, 271; UNCLOS art 92(2). 116 Maarten den Heijer, Europe and Extraterritorial Asylum (PhD Thesis, Leiden University, 2011) United States v Marino-Garcia 679 F 2d 1373 (1982) [1383]. 118 Naim Molvan v Attorney General for Palestine [1948] AC 351, [369]. 119 Papastavridis, Interception, above n 105, United States v Marino-Garcia 679 F 2d 1373 (1982) [1382]. 121 Goodwin-Gill and McAdam, above n 15, 271; Mark Pallis, 'Obligations of States towards Asylum Seekers at Sea: Interactions and Conflicts Between Legal Regimes' (2002) 14 International Journal of Refugee Law 329, Richard Barnes, 'The International Law of the Sea and Migration Control' in Bernard Ryan and Valsamis Mitsilegas (ed), Extraterritorial Immigration Control: Legal Challenges (BRILL, 2010) 103, 133; Efthymios Papastavridis, 'Enforcement Jurisdiction on the Mediterranean Sea: Illicit Activities and the Rule of Law on the High Seas' (2010) 25 The International Journal of Marine and Coastal Law 569, Opened for signature 15 November 2000, 2241 UNTS 480 (entered into force 28 January 2004). 17

18 migrants. 124 These same powers are available over flagged ships engaged in the smuggling of migrants, however the flag state must give permission for powers to be exercised over the vessel. 125 Smuggling of migrants is defined as the procurement of the illegal entry of a person into a state of which the person is not a national or permanent resident in order to obtain a financial benefit. 126 Individuals attempting to move asylum seekers through maritime zones are likely to be liable under such a definition. States may utilise these provisions to establish the jurisdictional nexus required to assert jurisdiction over stateless vessels. Under the Protocol, if evidence of smuggling is found, states may take appropriate measures in accordance with relevant domestic and international law. 127 Logically, it can be assumed that appropriate measures include bringing the vessel to the domestic port and initiating criminal procedures under domestic legislation. 128 It is unlikely to permit states to remove the vessel to a foreign port, as the jurisdictional basis for the interdiction stems from the interdicting state s domestic law. 129 By asserting control, the interdicting vessel is also required to respect its international law obligations, including the norm of non-refoulement. 130 (b) The Contiguous Zone Agents of states acting in the contiguous zone have limited powers to conduct interdiction operations as the freedom of navigation principle is still applicable. The coastal state can exercise the control necessary in the contiguous zone to prevent and punish infringements of its customs, fiscal, immigration or sanitary laws within its territorial sea. 131 The control asserted over inward bound asylum vessels is likely to be limited to the prevention of infringements, as punishment is only available upon breach of a domestic law. 132 As such, a coastal state is only permitted to assert control to prevent the infringement, most likely by removing the asylum vessel to the edge of the contiguous zone. 133 However, in asserting this extraterritorial control the coastal state becomes bound by its international obligations, including the norm of nonrefoulement and the duty to rescue those in distress. 134 (c) The Territorial Sea 124 Jurisdiction can only be exercised if domestic legislation has criminalized people smuggling. Smuggling Protocol art Ibid art 8(2). 126 Ibid art 3(a). 127 Ibid arts 8(2),(7). 128 Papastavridis, Enforcement Jurisdiction, above n 122, Ibid. 130 Smuggling Protocol arts 9, UNCLOS art 33(1)(a). 132 However, some domestic laws prohibit the intention to commit a crime. If so, and the law operates extraterritorially, the punishment power may arise over an inward bound vessel. 133 Goodwin-Gill and McAdam, above n 15, Tom Obokata, 'The Legal Framework Concerning the Smuggling of Migrants at Sea Under the UN Protocol on the Smuggling of Migrants by Land, Sea and Air' in Bernard Ryan and Valsamis Mitsilegas (ed), Extraterritorial Immigration Control: Legal Challenges (BRILL, 2010) 151,

19 Vessels can only legally enter the territorial sea when they invoke the right of innocent passage. An asylum vessel can legitimately exercise a right of innocent passage if their intention is to only pass through the territorial sea to reach a further state. However, asylum vessels are unlikely to invoke this right as they wish to disembark in violation of domestic migration laws. If the right of innocent passage was invoked by an asylum vessel wishing to disembark its passengers in Australia, this right would be breached by the intention to act contrary to Australian immigration laws. 135 This empowers the coastal state to take necessary steps to prevent the legal infringement. 136 The coastal state can interdict, board and search the vessel and expel it to the edge of the contiguous zone. However, the exercise of this power is subject to the vessel s seaworthy condition. 137 Coastal states are also empowered to suspend the right of innocent passage, as Australia did during the Tampa Incident in Under Article 25(3) of UNCLOS, coastal states may temporarily suspend the right of innocent passage for national security reasons. States may attempt to use this right to block the entry of asylum vessels into their territorial waters. Guilfoyle and Pallis reasonably question the extent of the security threat posed by the entry of a few hundred persons. 138 Thus, although states have previously enacted such suspensions it is difficult to identify their legal justification for doing so, particularly, given the exercise of this right is not to be taken lightly. 139 Furthermore, such actions conflict with the customary international law right of entry for vessels in distress. 140 This right places a limitation on coastal states wishing to prevent the entry of a foreign vessel into the territorial sea and also the removal of such a vessel. This right is likely to be invoked by asylum vessels as they often attempt to enter the territorial sea in an unseaworthy condition. The norm of non-refoulement also places a forceful limitation on the right to expel ships from the territorial seas. 141 Individuals within the territorial sea are able to claim protection under the coastal state s international obligations. 142 This requires, at a minimum that the coastal state abides by the obligations set out under the norm in Chapter 1. 3 State Practice 135 UNCLOS art 19(2)(g). 136 Ibid art 25(1). 137 See discussion below on maritime search and rescue obligations. 138 Guilfoyle, above n 103, 200; Pallis, above n 121, Donald Rothwell, 'The Law of the Sea and the MV Tampa Incident: Reconciling Maritime Principles with Coastal State Soverignty' (2002) 13 Public Law Review 118, Guilfoyle, above n 103, 202; Robin Churchill and Alan Lowe, The Law of the Sea (Manchester Univerisity Press, 3rd ed, 1999) Anja Klug and Tim Howe, 'The Concept of State Jurisdiction and the Applicability of the Non- Refoulement Principle to Extraterritorial Interception Measures' in Bernard Ryan and Valsamis Mitsilegas (ed), Extraterritorial Immigration Control: Legal Challenges (BRILL, 2010) 69, Trevisanut, above n 13,